Mr MELHAM (11:26 AM) —The Criminal Code Amendment (Terrorism) Bill 2002 is designed to amend the Criminal Code Act 1995 to re-enact federal counter-terrorism offences and thereby give them comprehensive national application. The bill will strengthen Australia's national antiterrorism laws. At the same time, it represents a significant development in cooperative Commonwealth-state relations. The bill will re-enact part 5.3of the Criminal Code, which contains federal terrorism offences enacted in June 2002 and as amended in October 2002, so as to attract the support of state references of power in accordance with section 51 (xxxvii) of the Constitution. These offence provisions were the subject of considerable debate within this parliament and were substantially amended by the opposition in negotiations with the government and during the debate in the Senate. They were eventually adopted with strong bipartisan support. Even the Prime Minister acknowledged that the legislation had been improved as a consequence of the debate.

This bill would, in effect, re-enact the terrorism offences as Commonwealth provisions capable of operating throughout Australia without any potential limitations arising from existing limits on Commonwealth constitutional powers. The government has given a commitment that the substance of the current offences would not be affected, as the offences would be in the same terms as the current offences but for the constitutional `reading-down' provisions. This legislation has arisen from a concern that the scope of the terrorism offences currently in place is limited by their reference to the patchwork of existing Commonwealth constitutional powers relied upon. While this patchwork is extensive and includes the Commonwealth's defence and external affairs powers, the government is advised that it is also complex and that it is therefore impossible to rule out gaps in coverage. Any legal complexity or uncertainty could become a focus for litigation about the effectiveness of the new federal terrorism offences.

Consistent with the agreement at the leaders summit in April 2002, the states are making constitutional references to top up the Commonwealth's power so that the offences can have comprehensive national application. The bill assumes a twofold reference by the states. State reference legislation refers the text of the new federal terrorism offences in part 5.3 of the Criminal Code, together with a power to amend those offences. The first reference by each state of the text of the federal legislation ensures that the Commonwealth has power to validly enact that text as a comprehensive law of national application. The second reference—the amendment reference—ensures that the new federal legislation, once enacted, could be amended from time to time by the Commonwealth parliament. This transfer of powers follows a similar model to that used in other Commonwealth-state cooperative arrangements such as corporate law.

It should be noted, however, that this bill takes the `corporations model' of cooperative legislation schemes a step further, in that it reflects an agreement between the Commonwealth and the states and territories that future amendments will not be made without the approval of a majority of the states and territories and of at least four states. Under this model, once the Commonwealth and the states have agreed on the form of the legislation, the states progress the relevant bills through their parliaments. Commonwealth legislation should then accurately reflect the precise text of the bills passed by the states, meaning that the Commonwealth parliament should refrain from any amendment to the bill under consideration. This is also the reason why the Commonwealth can only enact this legislation after all the state and territory laws have been passed and commenced. References of power have now been passed or are awaiting assent in most Australian states. The timing in Victoria has been affected by last year's state election, and the bill is presently before the Victorian parliament.

This is an important measure designed to ensure that there are no constitutional loopholes in the fabric of our national antiterrorism legislation. The opposition are pleased to give bipartisan support to this legislation, as indeed we have to all measures which strengthen our nation's security while safeguarding the rights and liberties that Australians hold dear. Over the course of the past year, Labor have supported an extensive array of new antiterrorism legislation; however, where proposed legislation violates fundamental principles, as in the case with the current ASIO legislation amendment bill, Labor will stick to those principles and oppose what would be bad law. I made this position very clear in the debate on that bill in the House this morning. In this debate, however, I am pleased to commend the Criminal Code Amendment (Terrorism) Bill 2002 to the House.